Citation Nr: 21067848 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-42 593 DATE: November 5, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for right ear hearing loss has been received, the application to reopen is granted. Service connection for right ear hearing loss is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for a lumbar spine disability has been received, the application to reopen is granted. REMANDED Service connection for a scar of the neck is remanded. Service connection for a lumbar spine disability is remanded. A disability rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is remanded. An initial compensable disability rating for left ear hearing loss is remanded. A disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In a September 2008 rating decision, the Department of Veterans Affairs Regional Office denied service connection for right ear hearing loss. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 2. The evidence pertaining to right ear hearing loss received after the last final rating decision of September 2008 was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's right ear hearing loss is related to active duty service in the U.S. Marine Corps. 4. In a March 2015 rating decision, the Department of Veterans Affairs Regional Office denied service connection for a lumbar spine disability. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 5. The evidence pertaining to the lumbar spine disability received after the last final rating decision of March 2015 was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2008 rating decision denying the claim for service connection for right ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 2. Evidence received since the September 2008 rating decision is new and material, and the claim for service connection for right ear hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The March 2015 rating decision denying the claim for service connection for a lumbar spine disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 5. Evidence received since the March 2015 rating decision is new and material, and the claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to June 2008 in the United States Marine Corps. His awards and decorations include the Purple Heart and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014, July 2015, and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. Service Connection & Applications to Reopen VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Additionally, for certain chronic diseases, including sensorineural hearing loss and arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. As new and material evidence sufficient to reopen the previously denied claim for service connection for right ear hearing loss has been received, the application to reopen is granted. In a rating decision of September 2008, the VA Regional Office denied service connection for right ear hearing loss. The evidence of record consisted of statements from the Veteran, his service treatment records, VA treatment records, and a VA examination report. The VA Regional Office determined that the disability preexisted military service, and denied the claim due to a lack of evidence showing that the right ear hearing loss was aggravated by service. There was no material evidence received within one year of the issuance of the September 2008 rating decision. The Veteran was notified of the decision and of his appellate rights but did not appeal. The September 2008 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. In a rating decision of April 2013, the VA Regional Office declined to open the claim for service connection. The evidence consisted of statements from the Veteran, his service treatment records, VA treatment records, and VA examination reports. The VA Regional Office continued the previous denial of the claim on the same basis as in September 2008, and additionally found that the Veteran did not have hearing loss for VA purposes. Within one year of the April 2013 rating decision, in February 2014, the Veteran submitted private medical records documenting right ear hearing loss for VA purposes. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The next adjudication of the claim was the June 2014 rating decision on appeal. Pertinent evidence added to the claims file since the September 2008 rating decision includes a March 2014 VA audiological examination report in which the examiner opined that the Veteran's right ear hearing loss was aggravated beyond its normal progression during military service. The Board finds that the March 2014 VA examiner's opinion is "new" evidence in that it was not before the VA Regional Office in September 2008, and is not duplicative or cumulative of evidence previously of record. This evidence is also "material" as it lends support to an element of the Veteran's claim for service connection, that of the aggravation of right ear hearing loss by military service. When viewed in the context of the reason for the prior denial, the added evidence cures a prior evidentiary defect. Accordingly, the criteria for reopening the claim are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Service connection for right ear hearing loss is granted. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has current right ear hearing loss for VA purposes, documented, for example on VA examination in June 2015. The VA Regional Office has adjudicated this claim as a preexisting disability. In this regard, veterans are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." 38 C.F.R. § 3.304 (b); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but he/she may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). On review of the Veteran's June 2003 service entrance examination, however, right ear hearing loss for VA purposes was not noted. The following puretone thresholds, in decibels, were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 25 25 As right ear hearing loss for VA purposes was not noted on the Veteran's service entrance examination, the Board finds that legal analysis pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 is not implicated. Furthermore, while the Board recognizes the subsequent June 2004 audiogram conducted after the Veteran began active service, containing a measurement of 40 decibels at 4000 Hertz, given the June 2003 audiogram and considering the remainder of the record, the Board does not find clear and unmistakable evidence that right ear hearing loss existed prior to service. As such, legal analysis involving the presumption of soundness pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304(b) is not implicated. The Board will proceed with an analysis of the claim on a direct service connection basis. Having established the presence of a current disability, the Board additionally finds that the in-service incurrence of acoustic trauma has been established. Pursuant to 38 U.S.C. § 1154(b), combat veterans may establish service incurrence of a disease or injury through satisfactory lay or other evidence which is consistent with the circumstances, conditions or hardships of service, even in the absence of official record of such incurrence. See also 38 C.F.R. § 3.304(d). Here, the Veteran is in receipt of the Purple Heart and Combat Action Ribbon and he reports that his right ear hearing loss is related to his exposure to excessive noise during combat. As such, the Board accepts the in-service incurrence of combat-related acoustic trauma. As for the etiology of the disability, the only opinion addressing the matter of direct service connection is that of the March 2014 VA examiner. The examiner reviewed the claims file and examined the Veteran. She noted that the Veteran was exposed to hazardous noise while serving in the infantry in Afghanistan and Iraq, as well as at the firing range. She noted that the Veteran additionally sustained a traumatic brain injury in Iraq during an explosion. Following service, he had only some occupational noise exposure and no recreational noise exposure. The examiner explained that the effects of noise exposure are cumulative over a lifetime, and opined that the Veteran's hearing loss was at least as likely as not caused by or a result of military service. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for his right ear hearing loss as directly related to military service. The opinion of the March 2014 VA examiner constitutes the entirety of the evidence on direct service connection. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Further, the March 2014 report is fully adequate for adjudication; the examiner performed a clinical examination of the Veteran and based her findings on a review of the in-service and post-service medical records. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the evidence is at least in equipoise in showing that the Veteran has right ear hearing loss attributable to service, and resolving all doubt in his favor, the Board finds that service connection is warranted. 3. As new and material evidence sufficient to reopen the previously denied claim for service connection for a lumbar spine disability has been received, the application to reopen is granted. In a rating decision of August 2008, the VA Regional Office denied service connection for a lumbar spine disability. In a May 2010 rating decision, the previous denial was continued. In a rating decision of March 2015, the VA Regional Office reopened the claim for service connection, but denied the claim on the merits. The evidence at the time consisted of statements from the Veteran, his service treatment records, and VA treatment records. The VA Regional Office denied the claim due to a lack of evidence showing that the lumbar spine disability was incurred in or aggravated by military service. There was no material evidence received within one year of the issuance of the March 2015 rating decision. The Veteran was notified of the decision and of his appellate rights but did not appeal. The March 2015 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. Pertinent evidence added to the claims file since March 2015 rating decision includes the Veteran's July 2021 hearing testimony. At the hearing, the Veteran testified that his physical therapist has explained to him that because of his service-connected gunshot wound residuals involving the left leg, he overcompensates on one side of his body. This overcompensation affects his gait and contributes to his current back pain. The Veteran is competent to report what he has been told by medical professionals, and the credibility of the statement is to be presumed for the purposes of reopening the claim. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (a layperson is competent to report what he was told by a medical professional); Justus, 3 Vet. App. at 513. This evidence is "new" in that it was not before the Board in March 2015, and is not duplicative or cumulative of evidence previously of record. Moreover, the Board finds this evidence "material" as it lends support to a necessary element of the Veteran's claim, namely, a connection between the current disability and the service-connected left leg gunshot wound residuals. Although a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under 38 U.S.C. § 7104(b), any evidence supporting the Veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). REASONS FOR REMAND 1. Service connection for a scar of the neck is remanded. The Veteran has current scar on the left neck, documented on VA examination in July 2015. He reports that the scar was incurred during military service when the cartridge case of a soldier firing a rifle next to him during training struck him in the neck. He reports that he did not seek treatment at the time, and the incident is not documented in his service treatment records. While the Veteran was afforded a VA examination in July 2015, and the examiner documented the current disability and the cartridge incident in service, she failed to provide any opinion addressing the etiology of the current scar. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A further opinion must thus be obtained. 2. Service connection for a lumbar spine disability is remanded. The Veteran has current chronic low back pain with functional impairment. See Wait v. Wilkie, 33 Vet. App. 8 (2020); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A November 2010 VA treatment record, generated years before the filing of the claim, additionally documents segmental dysfunction of the lumbar spine. He reports that he injured his spine during military service while performing deadlifts, running, and carrying heavy pallets of wood. Service treatment records show that in January 2008, he sought treatment for low back pain after performing deadlifts the day before. He was diagnosed with a muscle strain and was prescribed pain medication. On his Report of Medical History on separation from service, he reported having recurrent back pain, and the examining physician noted his history of a back strain. Following military discharge, the Veteran underwent a VA examination in July 2008 and was diagnosed with a low back strain. X-rays were negative. The examiner did not provide an opinion addressing the etiology of the disability. Thereafter, the Veteran continued to seek treatment for back pain. See, e.g. VA treatment records of May 2010, August 2010, November 2010, January 2012, February 2016, February 2017, August 2017, and February 2018. In an August 2010 record, he was assessed with "late effects of sprain/strain injury," but an actual medical opinion discussing the etiology of the disability with an accompanying rationale was not provided. These records indicate that the current lumbar spine disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A VA medical opinion must be provided prior to appellate adjudication, addressing both the matters of direct and secondary service connection as discussed at the July 2021 hearing. 3. A disability rating in excess of 10 percent for residuals of TBI is remanded. 4. An initial compensable disability rating for left ear hearing loss is remanded. 5. A disability rating in excess of 50 percent for PTSD is remanded. The Veteran last underwent VA examinations for his TBI residuals nearly six years ago in January 2016, and for his left ear hearing loss and PTSD in June 2015, over six years ago. At the July 2021 hearing, the Veteran reported symptomatology related to each of these disabilities that was not documented in previous records, and testified that his disabilities have worsened since he was last examined by VA. See Hearing Transcript, pp. 4, 8-12, 13-16. Moreover, contrary to the Court's holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007), on his most recent June 2015 VA audiological examination, the examiner failed to describe the functional effects caused by hearing loss. Further, the Veteran has submitted a private audiogram dated from September 2013 that contain unclear findings. In Savage v. Shinseki, 24 Vet. App. 259 (2011) the Court held that when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed. Here, it should be clarified whether the Maryland CNC test was used to obtain the speech discrimination score shown. Additionally, it would be useful if the graphical data was converted into numerical form. Given the indications of a possible worsening of the disabilities, and the deficiency in the June 2015 VA audiological examination, the Board finds that updated examinations assessing the current severity of the disabilities should be provided. See 38 C.F.R. § 3.327(a) (2020); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his left neck scar. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. Opine on whether it is at least as likely as not that the current left neck scar was incurred during active service or is related to an in-service injury, event, or disease. In this rendering this opinion, please consider the Veteran's reports that the scar was incurred during military service when the cartridge case of a soldier firing a rifle next to him during training struck him in the neck. He reports that he did not seek treatment at the time, and the incident is not documented in his service treatment records. 2. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his lumbar spine disability. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (A.) The examiner is advised that pain alone, in the absence of a diagnosed condition, can cause functional impairment of earning capacity and therefore qualify as a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed Cir. 2018). (B.) Opine on whether it is at least as likely as not that the current lumbar spine disability began during active service or is related to an in-service injury, event, or disease. In this rendering this opinion, please consider the following: Veteran's reports of experiencing low back pain in and since military service due to performing deadlifts, running, and carrying heavy pallets of wood January 2008 service treatment record documenting the Veteran's treatment for low back pain after performing deadlifts the day before. He was diagnosed with a muscle strain and was prescribed pain medication. January 2008 Report of Medical History on separation from service documenting recurrent back pain; the examining physician noted the history of a back strain. July 2008 VA examination report documenting a low back strain VA treatment records documenting ongoing low back pain. See, e.g. VA treatment records of May 2010, August 2010, November 2010, January 2012, February 2016, February 2017, August 2017, and February 2018. August 2010 VA treatment record assessing the Veteran with "late effects of sprain/strain injury." (C.) Opine on whether it is at least as likely as not that the current lumbar spine disability has been (i.) caused, OR (ii.) aggravated (i.e., worsened) by the Veteran's service-connected gunshot wound residuals of the left leg, including by any alteration in gait resulting from the left leg disability. 3. Afford the Veteran a VA examination to ascertain the current severity of his TBI residuals, in accordance with the applicable worksheet for rating the disability. 4. Afford the Veteran a VA examination to ascertain the current severity of his bilateral hearing loss, in accordance with the applicable worksheet for rating the disability. 5. Afford the Veteran a VA examination to ascertain the current severity of his PTSD, in accordance with the applicable worksheet for rating the disability. 6. After obtaining any appropriate authorization from the Veteran, contact the private audiologist (S. Simmons, Au.D.) who conducted the September 2013 audiogram and request clarification of the report. Specifically, the audiologist should be asked to (1) provide the audiometric examination results for each ear in a numerical report, as opposed to a graphed report; and (2) indicate whether the Maryland CNC test was used to obtain the speech discrimination scores shown. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.